RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXX	CASE:  PD-2014-00541
BRANCH OF SERVICE:  Army 	SEPARATION DATE:  20071030

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was a Reserve E6, Chemical Operations Specialist, medically separated for “chronic back pain,” with a disability rating of 10%.  

CI CONTENTION:  The CI contended his low back, in addition to several conditions not listed by the MEB or PEB.  The CI’s complete submission is at Exhibit A.  

SCOPE OF REVIEW:  The Board’s scope of review is defined in DoDI 6040.44.  It is limited to those conditions determined by the Physical Evaluation Board (PEB) to be unfitting for continued military service and when specifically requested by the CI, those conditions identified by the PEB, but determined to be not unfitting.  Any conditions outside the Board’s defined scope of review and any contention not requested in this application may remain eligible for future consideration by the Board for Correction of Military Records.  Furthermore, the Board’s authority is limited to assessing the fairness and accuracy of PEB rating determinations and recommending corrections, where appropriate.  The Board’s assessment of the PEB rating determinations is based upon a review of medical records and all available evidence for application of the Veterans Affairs Schedule for Rating Disabilities (VASRD) standards to the unfitting medical condition at the time of separation.  The Board has neither the role nor the authority to compensate for post-separation progression or complications of service-connected conditions.  That role and authority is granted by Congress to the Department of Veterans Affairs, operating under a different set of laws.  The Board gives consideration to VA evidence, particularly within 12 months of separation, but only to the extent that it reasonably reflects the severity of the disability at the time of separation.

RATING COMPARISON:  

SERVICE PEB - 20070831	VARD - 20070125	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Chronic Low Back Pain Due to Lumbar Degenerative Disease	5299-5242	10%	Discogenic Disease of the Lumbar Spine L3-L4 Herniated Nucleus Pulposus w/Narrowing of Neural Foramina	5243	50%	20080118	
			Left L5 Radiculopathy Associated with Discogenic Disease…	8520	10%		
COMBINED RATING:  10%	COMBINED RATING OF ALL VA CONDITIONS:  60%	

ANALYSIS SUMMARY:  

Chronic Back Pain due to Lumbar Degenerative Disc Disease (DDD).  According to service treatment records (STR) and the Medical Evaluation Board (MEB) narrative summary (NARSUM) on 25 January 2007, 9 months before separation, the CI’s chronic back condition began in May 2003 while unloading heavy boxes while in an activated status.  Lumbar spine MRI in June 2004 showed degenerative changes with a broad based central disc protrusion at L4-5.  Evaluation by VA neurosurgery recommended surgery as an option but the CI declined.  The CI was treated by the pain clinic and given an epidural injection for his pain.  Electrodiagnostic studies in September 2004 showed left L5 chronic radiculopathy.  

At the 22 November 2005 VA Compensation and Pension (C&P) examination, 23 months before separation, the CI reported worsening low back pain (LBP) , radiating to both lower extremities (LEs), left greater than right, and numbness in both LEs and left LE weakness and giving way.  He reported using a cane or a wheel chair for long distance ambulation.  He reported frequent falls when not using his wheel chair, cane or crutches and he would frequently stumble due to his left LE.  He was unemployed and reported requiring assistance with activities of daily living to include putting on his shoes, socks and underwear.  Physical examination showed lumbar muscle spasm with abnormal spinal contour (hyper-lordosis-abnormally increased inward curvature) and back range of motion (ROM) of 30 degrees flexion (normal 90 degrees) and combined ROM of 70 degrees (normal 240 degrees).  Neurological exam demonstrated decreased sensation to light touch and pin-prick in the left L4, L5 dermatome.  Strength testing was 5/5 on the right extremities and 4.5/5 on the left.  Patellar and Achilles deep tendon reflexes (DTR) were present and symmetrical bilaterally and his straight leg test (SLR) was negative.  The diagnoses were: herniated discs at L3-L4 and L4-L5 on MRI, left LE subacute radiculopathy by EMG, and left L5 and S1 radiculopathy. 

The CI reported little benefit from physical therapy and repeat MRI on 3 August 2006 showed DDD with disc protrusions from L3-S1 resulting in bilateral neural stenosis (lateral recess and neuroforamina).  Electrodiagnostic studies done on 26 June 2007 suggested “bilateral healed polyradiculopathy (neuropathy).  No acute radiculopathy findings seen.”  The examiner noted there was poor effort during the muscle testing section of the examination and recommended an exercise program and repeat EMG/NCV in 6 to 12 months.  Repeat EMG/NCV testing on 8 September 2006 demonstrated findings consistent with lumbosacral peripheral neuropathy, but no evidence of “active, acute radiculopathy.”  Medications and physical therapy assessment were recommended.  Despite treatment, the back condition could not be adequately rehabilitated to meet the physical requirements of the CI’s military specialty and the CI was referred for an MEB.  The MEB forwarded “low back pain” for PEB adjudication.

At the MEB NARSUM examination on 26 October 2006, 12 months before separation, the CI reported constant LBP with LE numbness and tingling sensations, with flare-ups a few times per week, without bladder or bowel issues.  He reported needing assistance with daily living activities and alternating use of crutches with a wheelchair for mobility.  The physical examination showed an abnormal gait.  There was moderate tenderness to palpation bilaterally on the paravertebral lumbar area.  The CI was unable to heel/toe walk.  Lower extremity strength, sensation, and reflexes were normal, with a positive straight leg raise test noted.  

Physical therapy ROM for the MEB performed on 16 January 2007 (with a goniometer), 9 months before separation, was flexion of 30 degrees (normal 90) and combined ROM of 80 degrees (normal 240).  The therapist noted the ROM values were not reliable due to pain.

The VA C&P examination dated 18 January 2007, 9 months before separation, was not in the available records.  The VA Rating Decision dated 25 January 2007 cited examination findings from this examination of TL flexion of 27 degrees and combined ROM of 70 degrees, with additional limitation due to pain after repetition. 

The CI sought care at the emergency room on 22 December 2007, 2 months after separation, for 4 days of left sided weakness and LBP unrelieved by his routine medications (muscle relaxant, pain medication, and medication for nerve related pain).  He was in a wheel chair.  He graded the pain as 3/10.  
A VA primary care visit on 12 June 2008 for worsening back pain, 7 months after separation, noted the CI was “ambulatory in no apparent distress.”  The physical examination at a VA PC visit on 18 August 2008 noted “range of motion intact, muscle tone adequate, no deformities” and “no gross sensory or motor deficits.”  A VA PC visit on 22 October 2008, 12 months after separation, noted the CI was in a wheelchair in no apparent distress.  He sought treatment that day for another musculoskeletal issue. 

The Board directed attention to its rating recommendation based on the above evidence.  The PEB rated the “chronic back pain” condition 10%, coded analogously at 5299-5242 (degenerative arthritis of the spine), citing painful motion.  

The original VA Rating Decision, dated 2 December 2004, rated the low back condition 50%, coded 5243 (intervertebral disc syndrome), citing limitation of forward flexion less than 30 degrees and additional limitation by pain after repetition and additionally rated “left L5 radiculopathy” at 10%, coded 8520 (sciatic nerve).  These ratings were continued unchanged in the VARDs dated 13 April 2005, 8 March 2006, and the VARD dated 25 January 2007, following the January 2007 C&P.

The Board agreed that a 40% rating, was justified for limitation of flexion not greater than 30 degrees) reported on the MEB NARSUM and pre-separation C&P examinations.  There was no evidence of ankyloses of the entire TL spine to support a higher rating.  The Board considered whether a higher rating (§4.7) was achieved by using the alternate rating formula based on incapacitating episodes due to intervertebral disc syndrome (IDS).  Although the CI had IDS there were no incapacitating episodes requiring bed rest prescribed by a physician to warrant consideration of rating under the alternate VASRD formula based on incapacitating episodes as defined by the VASRD.  

The Board also considered if additional disability rating was justified for peripheral nerve impairment due to radiculopathy.  The CI reported radiating pain to both LEs with numbness and tingling and multiple EMG/NCV studies in record noted chronic abnormalities consistent with the MRI findings of lateral spinal and neuroforaminal stenosis, but no evidence of acute nerve injury. Radiating pain from the low back condition is subsumed under the general spine rating criteria, which specifically states “with or without symptoms such as pain (whether or not it radiates).”  Therefore the critical decision is whether or not there was a significant motor or sensory deficit which would impact military occupation-specific activities.  There was no evidence in this case that a fixed motor or sensory deficit existed to any degree proximate to the date of separation that could be described as functionally impairing.  The MEB NARSUM exam performed 12 months before separation (most proximate pre-separation exam to the date of separation with this objective information) recorded normal strength, sensation, and reflexes of the LEs and VA outpatient treatment notes 8 months after separation, noted no “gross” motor or sensory deficits.  The Board therefore concluded that an additional disability rating was not justified on this basis.  After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the Board recommends a disability rating of 40% for the chronic back pain condition, coded 5243.  

BOARD FINDINGS:  In the matter of the chronic low back pain due to degenerative disc disease condition, the Board unanimously recommends a disability rating of 40%, coded 5243 IAW VASRD §4.71a.  There were no other conditions within the Board’s scope of review for consideration.  

The Board recommends that the CI’s prior determination be modified as follows; and, that the discharge with severance pay be re-characterized to reflect permanent disability retirement, effective as of the date of the prior medical separation:  

CONDITION	VASRD CODE	PERMANENT RATING	
Chronic Low Back Pain…	5243	40%	
COMBINED	40%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20140116, w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans Affairs Treatment Record

SAMR-RB

17 AUG 2016

MEMORANDUM FOR Commander, US Army Physical Disability Agency
(AHRC-DO), 2900 Crystal Drive, Suite 300, Arlington, VA 22202-3557

SUBJECT: Department of Defense Physical Disability Board of Review Recommendation
for XXXXXXXXXXXXXXXXXX, AR20160013046 (PD201400541)

1. Under the authority of Title 10, United States Code, section 1554(a), I approve the enclosed recommendation of the Department of Defense Physical Disability Board of Review (DoD PDBR) pertaining to the individual named in the subject line above to recharacterize the individual’s separation as a permanent disability retirement with the combined disability rating of 40% effective the date of the individual’s original medical separation for disability with severance pay.

2. I direct that all the Department of the Army records of the individual concerned be corrected accordingly no later than 120 days from the date of this memorandum:

a. Providing a correction to the individual’s separation document showing that the individual was separated by reason of permanent disability retirement effective the date of the original medical separation for disability with severance pay.

b. Providing orders showing that the individual was retired with permanent disability effective the date of the original medical separation for disability with severance pay.

c. Adjusting pay and allowances accordingly. Pay and allowance adjustment will account for recoupment of severance pay, and payment of permanent retired pay at 40% effective the date of the original medical separation for disability with severance pay.

d. Affording the individual the opportunity to elect Survivor Benefit Plan (SBP) and medical TRICARE retiree options.

3. I request that a copy of the corrections and any related correspondence be provided to the individual concerned, counsel (if any), any Members of Congress who have shown interest, and to the Army Review Boards Agency with a copy of this memorandum without enclosures.

BY ORDER OF THE SECRETARY OF THE ARMY:

Enclosure

CF:
( ) DoD PDBR
( ) DVA